Unlawful Dismissal: “You Had Already Retired, Your Dismissal An Exercise In Futility”- Court Tells Man

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The Presiding Judge, Akure Judicial Division of the National Industrial Court, Hon. Justice Kiyersohot Damulak has dismissed the case filed by one Mr. Patrick Esamah against Edo State Local Government Service Commission challenging his purported dismissal from office for lacking merit.

The Court held that Mr. Patrick Esamah had retired on 12th February 2014 having clocked 55 years of age by virtue of the Unified Local Government Service Staff Regulation 1977 and his purported dismissal in 2016 was an exercise in futility as he (Mr. Patrick Esamah) was not a valid staff of the Commission and therefore could not be dismissed.

Justice Damulak further added that the court cannot look into the lawfulness of Mr. Patrick’s dismissal in 2016 as that will be an academic exercise and there are no rights with respect to a dismissal in futility to be determined.

From facts, the claimant- Mr. Patrick Esamah had submitted that he received a letter of Dismissal from the Unified Local Government Service of Edo State and was never invited to appear before the Commission at any time and neither was any notification of any allegation made against him.

He submitted that the procedure stipulated in the Local Government Service Staff Regulation was not followed, that he was on leave when he received a letter of interdiction and had never been found guilty of fraud by any Court of competent jurisdiction to warrant a dismissal.

In defense, the defendant- Edo State Local Government Service Commission averred that Mr. Patrick was born on 12th Feb. 1959, turned 55 years in 2014 and by the provisions of the Unified Local Government Service Staff Regulation of 1977, and the contract of employment between the parties became determined in 2014 by efflusion of law, and Mr. Patrick cannot be asking for reinstatement back to the office. He urged the court to dismiss the case.

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In reply, Counsel to the claimant, Dr. N.O .Osaghale maintained that the circular letter dated 3rd of October, 2014 authored by the Head of Service of Edo State increasing the retirement age of public officials to 60 years as against 55 years provided for in the Staff Regulation (1977) is valid and concluded that Mr. Patrick ought to have retired from Public Service at the age of 60 years in February 2019 and urged the court to grant the reliefs sought.

Delivering the Judgment after careful evaluation of the submission of both parties, the presiding Judge, Justice Kiyersohot Damulak held that the retirement age of civil servants in Edo state is 55 years by virtue of the Unified Local Government Service Staff Regulation (1977) and supposing the circular issued by the head of the service could validly alter the Unified Local Government Service Staff Regulation, Mr. Patrick, who turned 55 years in February 2014 was not covered by the said circular of 3/10/2014.

Justice Damulak ruled that a law, rule or regulation cannot be interpreted by a government executive, it is the function of the Judiciary; and a law or regulation cannot be altered by a government executive, it is the function of the legislature or the person given that function by the enabling statute to make the regulations.

The Court held that by reason of Section 56(1) of the Unified Local Government Service Staff Regulation of 1977, Mr. Patrick, who was born on 12th February 1959, turned 55 years on 12th February 2014 and ought to have retired on 12th February 2014 and any stay in office beyond that date was not justifiable, not even by a subsequent valid amendment of Section 56 (1) of the Unified Local Government Service Staff Regulation of 1977.

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“Having found that the claimant ought to have retired on 12th February 2014, it is my further finding that as at 2016, the claimant was not a valid staff of the defendant and therefore could not be dismissed. The dismissal was an exercise in futility because, by law, the claimant had retired on 12th February 2014.” Justice Damulak ruled.

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